Illiterate family court attorneys?

Whence came the South Carolina family court habit of pleading for procedural relief in initial pleadings? When I learned to draft pleadings in law school we didn’t plead for procedural relief. When I started my career doing personal injury law, we didn’t plead for procedural relief. If we needed procedural relief we filed motions.

Yet, when I started practicing family law, the practice was to plead for procedural relief–discovery; the appointment of a guardian ad litem; requests for psychological testing–in one’s initial pleading. Seeing more experienced attorneys go-bys, I too developed this habit. Eventually I realized that procedural pleading was inelegant and I stopped. Requests for procedural relief were included in motions–often in an initial motion for temporary relief–but no longer appeared in my pleadings.

I have long assumed that the habit of including requests for procedural relief in South Carolina family court pleadings was due to the prior version of Family Court Rule 25, which encouraged the informal exchange of information but did not mandate formal discovery in family court proceedings unless stipulated to by the parties or ordered by the court. Attorneys wanting formal discovery included that request in their initial pleadings and the habit of pleading for procedural relief simply grew from there.

On January 30, 2017 the South Carolina Supreme Court amended Family Court Rule 25 effective May 1, 2017. Under the revised rule 25 “the parties shall be allowed to engage in formal depositions and discovery according to the South Carolina Rules of Civil Procedure.” For a few of my ongoing cases in which discovery hadn’t been ordered, I began issuing discovery in May. I immediately stopped including requests for discovery in my initial motions and started issuing discovery with my initial pleadings. Yet, almost seven months after the rule change was announced, and four months after the rule change went into effect, I am still seeing pleadings seeking discovery.[1] Just as a falling tide exposes leaky boats, the recent rule change is exposing which family court attorneys actually read.

I’m a horrible poker player because I can never pick up opponents’ tells. Yet I think myself skilled at looking at an opposing attorney’s work product and learning how much attention is being paid to the matter. Issue nothing but boilerplate discovery–or, even worse, discovery that is clearly irrelevant to the case (and I have seen attorneys issue discovery regarding custody issues in cases where there are no children)–and I assume that attorney is not paying attention. Issue discovery tailored to the unique facts of the case that is designed to get my client to provide damaging information or admit damaging facts and I know that attorney is preparing for success. In the latter case I will try to find a reasonable and workable compromise to resolve the matter. In the former case I will press for every advantage.

Someone pleading for discovery in a family court complaint either hasn’t read Family Court Rule 25 or hasn’t read their complaint boilerplate. One might assume that attorney is illiterate. However that obviously cannot be the case–the attorney did pass the bar exam–so I assume that attorney isn’t paying attention. That’s a very useful tell I doubt that attorney intended to reveal.

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[1]I am also seeing family courts still issuing temporary orders authorizing discovery and wonder why that is happening.